Mr S Martyn v Bardwood Support Services Ltd: 1602130/2019
JUDGMENT
[1]The claims for breach of contract and/or unlawful deduction of wages be dismissed.REASONS
Oral Judgment was given on 3 August 2020 with reasons. The Claimant requested written reasons and these are the written reasons.[1]By a claim received by the Tribunal on 17 July 2019 the Claimant Mr Simon Martyn claimed unfair dismissal, arrears of pay and breach of contract. In that claim form the date of employment is stated as having commenced on 1 February 2019 and the Claimant says he is still employed. Paragraph 8.2 sets out the details upon which he makes his claim which is that he was hired on a 40 hour per week contract and told that he would need to go through a vetting stage with the Respondents, Bardwood Support Services. He was told they provided a vetting service for Mitie. The Claimant says “I have now been made aware that they were/are the actual employer”, and then there is a sequence of events which is set out.[2]The Respondents denied the totality of the claim in a Response dated 19 September 2019. They point out in the Response that the actual date employment commenced was 11 February 2019 and as far as when the employment will end, it says 31 December 2030, and employment has not ended through resignation or disciplinary process. The box is ticked for the employment continuing.[3]In 6.1 of the Response a point is made about the Claimant not having the right to complain of unfair dismissal because he has not completed the requisite service period to qualify for such a claim. Then the Response goes on to give the sequence of events as the Respondents say is relevant.[4]There have been two Case Management Hearings in this case, the first Case Management Hearing was on 24 March 2020. Under the heading of, a summary of the case, the following appears, “the Respondent is a provider of security staff. It employed the Claimant from 1 February 2019 as a Security Guard, the Claimant received a gross annual salary of about £21,600; The claim issued was essentially about whether the Claimant was owed wages for June 2019.” Paragraph 13 says the Tribunal has no jurisdiction to consider any unfair dismissal claim as the Claimant does not have sufficient continuity of employment and any claim for unfair dismissal would be rejected. If this has not been made clear to the Claimant to date. The case proceeds only as unpaid wages and/or breach of contract. Paragraph 14 says that there is a dispute between the parties as to the terms on which the Claimant was employed.[5]The Claimant’s position is that he was employed on a contract of employment which provided for 39 hours per week at £9 per hour. He is uncertain as to whether his contract is continuing but he believes it is continuing as his employment has not been terminated by the Respondent.[6]The Respondents position is that the Claimant was employed on a zero hours contract, that the Claimant’s employment is continuing but he has not been provided with work by the Respondent since July 2019.[7]The second Case Management Hearing was on 2 July 2020 which concerned disputes between the parties about what was to be included in the bundle of documents. In paragraph 7 of the Case Management Order it says “the issues for the Tribunal to decide are based on an unlawful deduction of wages and breach of contract.” The Respondent states the contract has not been terminated, if that is correct then the Tribunal does not have jurisdiction to deal with the breach of contract claim during the existence of the contract of employment. If the Respondent is wrong it would appear the Claimant suggests that it is wrong about termination, he initially claimed unfair dismissal, then the Tribunal is limited to a breach of contract award for notice pay. It is therefore solely a claim about the contract coming to an end or not.[8]The claim for unlawful deduction of wages again is related to the existence of the contract. If the contract is correct, if the Claimant is correct, the contract was for a 39 hour week and he has not been paid despite being ready, willing and able to work, then he will be entitled to be paid for that up to the termination of the contract. If the Claimant is not right and it is a zero hours contract he will have no specific entitlement.[9]So those are the issues as defined by the Tribunal. I have heard evidence today from the Claimant, Mr Simon Martyn and from Mr Nilesh Rajgor who is a Commercial Director of the Respondent Company.[10]The findings of fact that I make are as follows:[11]The Claimant had contact with one of the employees of Mitie regarding possible work with them. The Claimant says in his statement that if one looks at page 3 of the bundle of documents, being screen shots, this shows that he was clearly offered a 39 hour contract by Mr Dane Jones a Recruiter and Operations Manager for the company at the time. Dane Jones was not employed by the Respondents but was an employee of the company called Mitie. That screen shot there shows text exchanges in February 2019 and earlier in January 2019 about a job in Newport with a 39 hours role. One of the screen shots is the question “any news on how to apply for the job? Available to start immediately just need to know how to apply”, so that was the enquiry that was being made by the Claimant at that time. What the Claimant says is that Mr Dane Jones was someone who acted with the full authority of the Respondents and that he was offered a 39 hour contract at a rate which he says was £9 per hour, although part of his evidence the Claimant seemed to accept that it was £8 per hour, since £9 per hour was a rate that was going to be paid from 1 July 2019. The context in which this exchange has taken place must then be looked at in relation to what occurred with the involvement of the Respondents and the Claimant himself.[12]Mr Rajgor says that the Claimant company is a company that operates recruitment services for many clients throughout the UK. They provide their clients with a recruitment service based on temporary to permanent basis and recruit staff from zero hours contract until they transfer to the client normally after 3 months. Mitie was simply one of the clients of the Respondent company who approached them to carry out the recruitment process in respect generally, but also in relation to the Claimant.[13]The Claimant accepts that there was communication with the Respondents and he was sent a number of documents. An application form, an induction form, medical documents and a document which is a key document which is set out on page 15 of the bundle. This is a document that is a contract, terms of engagement for workers. No issue is taken in relation to the fact that those documents have been supplied. In relation to the terms of engagement for workers the Claimant on 11 February 2019 put his name, email address and also submitted the document by saying yes to agree to the terms and conditions of this contract.[14]The Claimant said in evidence that he did not really read this document and understand necessarily about it because he had had discussions with Mr Dane Jones and understood that he was being employed by Mitie for that term of 39 hours per week and that his employer was Mitie.[15]The document requires careful consideration. On page 16 of the terms of engagement under the heading “the contract” it says “these terms constitute a contract for services between the employment business and the worker and they govern all assignments undertaken by the worker, however no contract shall exist between the employment business and the worker between assignments”, paragraph 2.2 says “for the avoidance of doubt these terms shall not give rise to a contract of employment between the employment business and the worker, the worker is engaged as an employed worker”. Then in paragraph3.1 it says “the employment business will endeavor to obtain suitable assignments for the worker to work as a Security Officer”,3.2 “the worker acknowledges that the nature of the work means that there may be periods where no suitable work is available and agrees that suitability shall be determined solely by the employment business and that the employment business shall incur no liability to the worker should it fail to offer opportunities to work in the above category or in any other category”, and3.3 says “for calculating the average number of weekly hours worked by the worker on an assignment the start date for the relevant averaging period under the Working Time Regulations shall be on a date on which the worker commences the first assignment”, and paragraph3.4 says “if during the course of an assignment or within 6 months after the end of the assignment, the client wishes to employ the worker direct, the worker acknowledges that the employment business will be entitled either to charge the client an introduction fee, or to agree an extension of the hiring period with the client at the end of which the worker may be employed direct by the client without further charge to the client.”[16]At this point it should be noted that in the evidence given by Mr Rajgor that he said that usually if all goes well at the end of a period of some 3 months then the worker would cease to be employed he said by the Respondents and would take up employment directly with the client, and that certainly is in accord with the tenor of what 3.4 says.[17]Paragraph 4 concerns remuneration and this says the employment shall pay to the worker remuneration calculated at a minimum hourly rate at the prevailing rate, the actual rate would be notified on a per assignment basis for each hour worked during an assignment to be paid monthly in arrears subject to various deductions.[18]Then under paragraph 8 “conduct of assignments” it says “the worker is not obliged to accept any assignment offered by the employment business, but if he does so during every assignment afterwards where appropriate…..” and there are various matters set out there such as cooperating with the clients reasonable instructions.[19]Paragraph 8.2 says “if the worker is unable for any reason to attend work during an assignment he should inform the client of the employment business a minimum of 5 hours of the commencement of the assignment or shift.[20]Paragraph 9 is to do with termination. Paragraph9.1 says “the employment business of the client may without prior notice or liability terminate the worker’s assignment at any time and the worker may terminate an assignment giving a minimum of 2 weeks written notice by letter or email”, 9.3 “if the worker does not inform the client or the employment business in accordance with clause 8.2 should they be unable to attend work during an assignment this will be treated as termination of the assignment by the worker in accordance with clause9.2 unless the worker can show that exceptional circumstances prevented him from complying with clause 9.2”, and for the sake of completeness 9.4 says “if the worker is absent during an assignment and the contract has not been otherwise terminated the employment business will be entitled to terminate the contract in accordance with clause 9.1 if the work to which the absent worker was assigned is no longer available for the worker.”[21]Reliance is placed by the Respondents upon this document as setting out what are the terms of engagement of the Claimant in this case. I will return to this matter shortly but it has to be said that the phraseology that is used and would appear to be the intent, is to not create a contract of employment, that is a contract of service, between the Respondents and those that are on their books to whom they then arrange to work for companies such as Mitie. Without going into too many details about the characteristics of a contract of employment it is unnecessary for the Tribunal to ponder this at any further depth because it is accepted by the Respondents that at the material times the Claimant was an employee of the Respondents and that no doubt is the result of the degree of control and all the circumstances of the case which point to the relationship between the Claimant in this case and the Respondents as not being one of a self-employed worker but one of employment as an employee.[22]The discussion regarding the work to be undertaken by the Claimant is based on two periods of time, very heavily relied upon by the Claimant. First of all the period of time before he actually commenced work. In spite of what is set out in some of the Orders and documents, it is common ground that in fact it was the 19 February 2019 that the Claimant started work this work went into 20 February 2019 because it was a shift that went into the next day.[23]The Claimant relies upon the exchange of text messages which have been referred to as being an offer made by Mr Dane Jones of employment for 39 hours. Secondly the other period of time that it is necessary to consider is the period of time which begins in mid-June of 2019. There are a number of emails set out in the bundle which show the exchange of emails between the Claimant and Shannon McRory who is Accounts Manager with the Respondents, regarding the employment at Wilco DC full time as of 1 July. Those commence on page 35 and they set out a discussion where Shannon McRory says to the Claimant “please confirm if you will be happy to be placed into Wilco DC full time as of 1 July as I understand you do not wish to stay in Wilco Newport.” Wilco DC is in Magor and Wilco Newport is in, as it says, Newport, Gwent. The Claimant asks “what will the full time hours be?” and the response is from Shannon McRory “I am unaware of what the full time hours would be. I have been just asked to see if this would be of interest to you.” The Claimant replies, “yes, I would be OK with working there full time as long as I was given at least 48 hours per week.” The shift patterns there are 4 on and 4 off each shift being 12 hours. The response to that from Shannon McRory is “leave this with me and I will speak to the client and get this sorted.” The Claimant then emails on 18 June, “I forgot to mention on the previous email that my rota only goes as far as 23 June so I’d be available for Wilco DC before 1 July as I have nothing else currently scheduled.”[24]On 20 July the Claimant emailed and asked “is there any update on my rota from 23rd? Will I be at Wilco DC from the Monday? I understand it’s difficult to get information, I just need to make arrangements going forward in this.” The response is, “I will chase Peter for this. Wilco DC isn’t due to start till 1 July from what I have been told.” It is also instructive to consider a document which sets out the various payments which were made from February 2019 to the Claimant. It shows that the place of work was mainly at Wilco Newport at a rate of £8 per hour, there were other places that the Claimant worked, for example, on 7 April 2019 he worked at Wilco DC (Magor), but that rate was £9 per hour. So, irrespective of any consideration about whether what the Claimant says was due to be a review at the end of June or July for his vetting period and an increase to £9 per hour, the fact is that if he worked at Wilco DC (Magor) as he did, he got paid more per hour than he was paid if he was working at Wilco Newport and it was nothing to do with the end of the vetting period in relation to that. Then there is a return to working in Wilco Newport at a slightly higher rate of £8.21 because of the national minimum wage considerations. There is work also at BASF Metals which the Claimant said was in Gloucester for some periods and also at Tesco. The Respondents say all this work was for the client Mitie and that the rate of pay varied as to where the work was actually carried out. I accept that evidence that that was the basis upon which work was undertaken.[25]Looking at all the circumstances I reject the submission that has been made by the Claimant that in January or February there was a definite offer binding on the Respondents that he be employed for 39 hours per week at a rate of £9 per hour, or indeed at any rate. The whole basis of the discussions that took place, and the documents provided, particularly the terms of engagement, make it clear that firstly he was not employed by Mitie and that he was employed by the Respondents and that his employment with the Respondents was not for any set period of hours but as per any assignments i.e. placements that the Respondents obtained for the Claimant and he was paid according to, as the document says, what the rate of pay was in the particular location that he was working. As it happened for most of the period of time he was working at Wilco in Newport at £8 per hour.[26]As the correspondence shows then in June there was a further period of discussion because the Claimant had the wish to work from 1 July at the Magor premises, it paid more and it was more convenient because there were difficulties emerging about parking of the Claimant’s vehicle at the Wilco Newport store. All those matters are consistent with there being no definite offer of employment but merely discussions with the Claimant for example saying that he wanted 48 hours per week and not the 39 hours and that he understood it was working on a shift pattern. This is inconsistent with the view put forward by the Claimant that he had an offer of 39 hours per week at £9 per hour from 1 July from the Respondents either by discussion with the Respondents themselves or by any other discussions which may have taken place. What the Claimant seemed to be fusing together are some preliminary discussions which led to the contract under the terms and conditions as outlined with the Respondents in the January/February period with what was then occurring later in June and July.[27]The work pattern and payment to the Claimant is inconsistent with the account that the Claimant now gives and the Claimant himself in the submission recognised, to a degree, the fact that asking for the £9 per hour may be inappropriate for the whole period of time and/or he was at pains to point out that he did far more than 39 hours per week, he was working in excess of 50 hours on many occasions and paid accordingly as to where in fact he was working.[28]Matters however came to a very unhappy sequence of events from 26 to 30 June because payments were made as the document referred to in arrears on about the 8th of the month and so his June working hours should have been paid in the first week or so of July. However, from 26 to 30 June the Claimant says that he said he was not going to go to work because of the parking difficulties, it is clear from looking at the correspondence that there was some confusion, to put it neutrally, between what the Respondents understood to be the fact that the Claimant had been working and therefore was entitled to be paid and what the records showed. There was correspondence between the Accounts Manager and the Mitie organisation regarding the work that was undertaken, or not undertaken at this time.[29]Mr Rajgor says that this arose from the fact that at one time at least the Claimant had put documents in, or confirmed, that he had been working but that was clearly contradicted by information received from Mitie. The Claimant himself said “well this matter had been resolved and that what I had been paid had been rectified” and therefore there would appear, on his own account, to have been at one time, whether his fault or not, some overpayment, but the consequence of this matter was that the view adopted by Mitie, and in particular by Mr Peter Rumbold who is a Senior Operations Manager for the South West for Mitie, clearly expressed on 9 July 2019 in an email to the Respondents which had not been copied to the Claimant. That may not be unusual because there was no requirement for Mitie to copy the Claimant because he was not their employee. That email says in the final paragraph “in terms of actions that you may wish to take with Simon I will leave up to you, but from our perspective, based on the fact that he is fraudulently stating he was on a site seriously brings his honesty into doubt unless he has a very good explanation for claiming his attendance when he is obviously not there. We would not wish to assign him to one of our client’s sites.” The Claimant says that that clearly does not indicate that he could not work at any other Mitie site in the South Wales or reasonable commuting distance in the South West.[30]I find that the Claimant’s interpretation is not the right interpretation, and that it is quite clear from the words used by Mr Rumbold that on behalf of Mitie in the South West, which would appear to include Wales, that they did not wish to have the services of the Claimant going forward.[31]The Claimant had conversations at this time, according to his evidence, with Mr Rumbold and was told that he was not an employee of Mitie and that he was on a zero hours contract. The Claimant was, according to what he said, shocked by this. He also discussed with Shannon McRory what the position was and told that he was on a zero hours contract. As a result of the concerns that the Claimant felt he issued this claim shortly afterwards.[32]The Claimant in his submissions to the Tribunal says that he had no reason to disbelieve Mr Dane Jones and that everything he was telling was correct regarding the fact that he understood that he was going to be employed by Mitie, but that exchange of screen shots does not constitute an employment contract because it is equally consistent and indeed is consistent with the fact that there was a need for Mitie to have someone as a Security Officer in Newport for 39 hours but the mechanism by which it was actually put into effect, the legal mechanism, is as the terms of engagement indicate not necessarily about him being not an employee but of being someone who would be on assignments to various locations and paid accordingly but with no obligation by the Respondents who entered into a contract of employment with the Claimant to provide him with any hours. It is clear that the Respondents could only offer work if they had the work to offer the Claimant.[33]It may be unfortunate that matters were not as clear as they should have been to the Claimant at the beginning. The Claimant goes on to say that Mr Dane Jones must have had the authority of the Respondents, but that does not follow at all because the documents provided clearly show that the basis upon which the work was to be undertaken was in locations to be assigned not purely in Newport but in other locations and with other individuals such as other organisations other than Wilco in Newport for 39 hours, for example, for Tesco and for Wilco Distribution Centre.[34]The Claimant said in his submissions that the gaps as far as any contract are concerned regarding no zero hours or rate of pay can be actually put together from the information given. If there are gaps they can be put together by looking carefully at all the circumstances upon which the Claimant actually worked, what documents that he had, how the work was undertaken and what his understanding was about his status at that time. The Respondents submit that as far as their role was concerned regarding vetting, that they carried out their own vetting but they also supplied the results of their vetting to Mitie, but they were not purely a vetting agency as the Claimant considered them to be, and indeed the paragraph which refers to direct employment during the period of assignment with Mitie is with the end supplier is something which is consistent with the evidence given by the Respondents and how the business worked and how they dealt with the Claimant.[35]The sequence of events which occurred in June led to the decision by Mitie that they did not wish to continue the services of the Claimant and I accept the evidence of the Respondents that their business does not have alternative employers or other contacts which they could supply the Claimant to work at that time.[36]It is unsatisfactory that the situation ended in the way that it did because there has been on the part of the Claimant and the Respondent no formal termination of the contract of employment, but as set out by Judge Beard and others in the Case Management Order, the issue is upon what basis was the Claimant working? Was is a 39 hour contract and was there an obligation on the part of the Respondents to provide those hours to the Claimant or was the Claimant working upon the basis that he would be given what hours that were required to be undertaken which he could accept or not which was convenient to himself as mirrored in the document that he submitted, being the terms of engagement. I find that it was the latter upon which the Claimant was working, not with any guaranteed hours at all, but of course people who continued to work for a period of time have some expectations, but that is not the same as any legal rights to be provided 39 hours of work.[37]The consequence of the contract of employment still continuing is as set out by Judge Beard. The Tribunal has no jurisdiction in respect of breach of contract claim and that must be dismissed. The factual basis of the breach of contract claim, is almost identical to that of the unlawful deduction of wages because it depends upon what was the contract itself. The contract as indicated in my findings are that the Claimant had no entitlement to a 39 hour week and there was no obligation on the part of the Respondents to provide any further hours. The consequence of this is that the claim for unlawful deduction of wages must also be dismissed.[38]I did indicate in this Judgment that is unsatisfactory firstly about the way that the relationship had ended and it would have been a lot clearer for everyone had the position been set out in correspondence between themselves. Also the fact that some reflection must be undertaken by the Respondents if they are continuing to use this document as terms of engagement, but then saying that the individuals whom they engage are in fact their employees under a contract of employment. It is wholly unacceptable that that situation should be allowed to continue in the future because it can lead to there being a degree of confusion in some circumstances. The claims are, therefore, dismissed.